Guest post by BISWAJIT ROY
In this piece, I would like to share my reading of judgments on Ayodhya. I have only managed to go through the judgment of Justice Khan in detail and parts of justice Agarwal and Sharma’s expositions. Though the Lucknow bench of Allahabab High Court accepted the Hindu faith-based claims about Ram’s birth at the disputed site and the 2-1 verdict went for its three-way partition, all the three judges differed in their takes on the issues related to claims and counter-claims reflecting not only their individual subjectivity but also social loci. To be more candid, they hardly hide their community background and their stakes as insiders.
The bench has anchored its verdict it by referring to religious scriptures, medieval memoirs, foreigners’ travelogues, colonial records, and history books well as folklore and oral tradition. But the judges’ reading of these texts differed much less on legal nuances and more on interpretations and inferences based on their own religio-political understanding and beliefs.
Here is what I found interesting in Justice Khan’s judgment. He differed with other two judges on substantial points: the acceptance of disputed site, to be precise, the area under the central dome of the demolished mosque as Ram’s birthplace, Babar’s demolition of a pre-existing Hindu temple and the mosque’s validity as a proper mosque.
How the dispute began
Justice Khan traced the trajectory of the dispute, it emerged that the Hindus have started believing in the historicity of Valmiki’s Ram and divine incarnation in Ayodhya since Mughal period as Tulsi Das’ Ram Charit Manas caught the popular imagination. But the communal contest on the Janambhoomi was clearly a religio-political construct in nineteenth century under colonial rule the inter-community conflicts over the mosque-janamsthan dated back to 1855, if not earlier period.
Later, there were also communal clashes over Hanumangarhi, adjacent to the mosque-Janamboomi, which Muslims claimed a mosque-turned Hindu temple. Justice Khan also recorded that Ram Chabutara and Sita Rosoi came up over the Muslim graves in and around the disputed site in nineteenth century.
It’s not only the painful reminder of the continued communal contest but also of the use of mythology of antiquity to buttress the modern claims. We have to consider these unpleasant facts while negotiating the history of Ayodhya where temples and mosques, makbaras and dargas coexisted for centuries bearing the testimonies of age-old assimilation of Hindu and Muslim mythologies that enriched the shared local culture and history.
In other words, the Sangh Parivar did not invent a communal contest on Ram janamsthan but amplified it for a pan-Indian formation of homogenized Hindu identity and its demonized Other in order to make it suitable for political mobilization and electoral success.
The location of Ram Janamsthan
Though Justice Khan concurred that the ‘portion below the central dome where at present the idol is kept in makeshift temple will be allotted to Hindus in final decree’, he questioned the Hindu claim to the precise space as janamasthan in his examination of the arguments and supportive documents. In the gist of his findings, he pointed that ‘for a long time till the construction of the mosque it was treated/believed by Hindus that somewhere in a very large area of which premises in dispute is a very small part [the] birthplace of Lord Ram was situated. However, the belief didn’t relate to any specified small area within that bigger area specifically the premises in dispute’.
In his detailed examination, he noted that the Hindu parties to the title suit claimed ‘no other place in Ayodhya was worshipped as Ram’s birthplace’ but they failed to give any ‘specific reply’ on whether the janamasthan’/ Janambhoomi ‘meant the exact site where Kaushailla the mother of Lord Ram gave birth to him (which from its very nature could be very very small area of 5 to 10 square yards only) or it meant the room in which the birth took place, or it meant the mansion where mother of Lord Ram resided’.
On the other hand, he noted that the Muslim parties including Sunni Wakf board counsel Jafaryab Zilani ‘repeatedly contended that it was not disputed that Lord Ram was born at Ayodhya [but] ‘seriously disputed the assertion that Lord Ram was born at the premises in dispute’.
So it was not a “conflict between the [historical] ‘faith-based’ (Hindu) claim, and a MODERN-property rights (Muslim) claim,” as one contributor had suggested.
Demolition by Babar
Referring to Tulsi Das, Justice Khan also did not accept Hindutva claims that Babar or his general demolished a temple to build the mosque. According to him, the great poet who wrote the Ram Charit Manas (1574-1577) would not have missed the Mughal demolition ‘if a temple standing on the premises in dispute had been demolished’ and ‘a mosque had been constructed thereupon less than 50 years before’ his writing. “Even if it is assumed that the mosque was subsequently constructed by Aurangzeb still Tulsi Das should have mentioned in Ram Charit Manas that a specific small piece of land measuring 1500 square yards or a temple standing on such a site was a birth place of Ram,” he observed. He was skeptical about the Hindu groups’ efforts to explain the ‘vital omission’ on the ground that Tulsi Das was sacred of Mughal emperor’s wrath. “Such a wild allegation/ accusation against a poet of repute and calibre of Tulsi Das is rather unpalatable even to non-Hindus,”
While questioning the Hindu claims about the location of Ram’s birth-place at the disputed site, Justice Khan also doubted the ASI report that indicated demolition of a pre-existing temple by Babar or Aurangzeb and subsequent construction of a mosque over the ruins. “Such a mega event, if actually takes place, is not forgotten for centuries,” he commented.
“Secondly, in case some temple had been demolished for constructing the mosque then the superstructure material of the temple would not have gone inside the ground. It should have been either reused or removed. No learned counsel appearing for any of the Hindu Parties had been able to explain this position.”
After examining the ASI report on the temple items found beneath the disputed site, Khan rejected the first demolition theory by observing that superstructure of a ruined building goes down the ground gradually over the centuries except in case of a high flood or severe earthquake.
“Accordingly it is abundantly clear that firstly no temple was demolished for constructing the mosque and secondly until the mosque was constructed during the period of Babar, the premises in dispute was neither treated nor believed to be the birthplace nothing but birth-place and the whole birth-place of Lord Ram. It is inconceivable that Babar (or Aurangzeb) should have first made or got made through to ascertain the exact birth-place of Lord Ram which was not known to anyone for centuries and then got constructed the mosque on the said site,” he said.
However, ‘since after construction of the mosque Hindus started treating/believing the site thereof as the exact birthplace of Lord Ram’.
Making an ‘informed guess’ that a ‘very large area was considered to be the birth place of Lord Ram by general Hindus, Justice Khan felt that Babar got constructed the mosque in question’ ‘at a random small spot in the large area where there were ruins of several temples’.
As Gilani and other counsels for Muslims ‘conceded that it is quite possible that some material of some ruined temple may have been used in the construction of the mosque’, Khan quoted foreign authorities to suggest that the ‘materials used were possibly belonged to the’ ruins of some Buddhist religious place on and around the land on which the mosque was constructed’ since Ayodhoya was historically important religious centre for Buddhists and Jains.
Validity of Babri mosque as a proper mosque
While Justice Verma virtually supported the Hindu plaintiffs’ position by refusing to accept Babri mosque as a ‘valid mosque’ on the ground that ‘it came into existence against the tenets of Islam’, Justice Khan differed substantially. According to him, “use of the materials of the ruined temple in constructing the mosque cannot be said to be desirable. However, it is not such that it renders the mosque in the eye of law”. The disputed land, he said, neither ‘belonged to Babar [n]or the person under whose orders the mosque was constructed’. Also, ‘it has not proved that the land belonged to any one else hence from the existence of mosque for a long period title can be presumed’. “Accordingly, it cannot be said that the mosque was not a valid mosque having been constructed over the land of some one else’.
Maintaining that the mosque continued to be a mosque ‘since its construction prayers were offered in the mosque in question and Friday prayer were being offered uptill 16.12.1949’, Justice Khan reminded: “Moreover, there was absolutely no sense in dividing the premises in dispute by railing in 1856 or 1857 if Muslims were not offering Namaz in constructed portion till then. In the riot of 1855 seventy Muslims were killed while taking shelter in the premises in dispute. After such a huge defeat Namaz could not be for the first time started thereat.”
On whether premises in dispute a deity etc, Justice Khan declined to recognize the place a Juristic person on the ground that ‘ it is not proved that since before the construction of the mosque the premises in dispute was specifically treated/ believed to be the birthplace of Lord Rama. “Accordingly, it is not necessary to decide as to whether in any case land itself can be a deity under Hindu Law or not,’ he said.
On joint possession and three-way partition
Apparently, in his desperate attempt to focus on the silver lining in the darkness, Justice Khan tried to view the grudging/forced co-existence during the history of communal contest over disputed site in a different a way. ” It was very very unique and absolutely unprecedented situation that inside the boundary wall and compound of the mosque Hindu religious places were there which were actually being worshipped along with the offering of Namaz by the Muslims in the mosque,” he observed highlighting the fact of joint possessions as well as his advocacy of religious tolerance and harmony.
On unlocking of the Ramlalla’s place in 1986 and demolition of the mosque in 1992
Justice Khan criticized the district judge of Failzabad for ordering the unlocking of the sanctum sanctorum of the disputed site in 1986 by saying that ‘there was no occasion to show such undue haste’ as the appeal was filed on 31st January, 1986 and was allowed on the next day’. Chastising the subordinate court for failing to follow the principle that not only justice must be done but it must also appear to be done, he commented that “this [the order] obviously shook the faith of the parties affected by the said judgment which was the real tragedy”.
But the same judge failed to criticize the demolition on 6th December, 1992 and skipped comments on the demolition except taking note of the post-demolition judicial order quashing the Kalyan Singh-era acquisition of disputed land along with premises in dispute along with some adjoining areas in response to the pleas of some petitioners that the then UP government’s ‘purpose of notifications [of acquisition] was destruction of the mosque and construction of temple hence they were malafide’.
But on the demolition itself, Justice Khan restrained himself to only noting the well known facts that ‘on 6.12.1992, a very large crowd of Hindus (Kar Sewaks) gathered at the spot and demolished the constructed portion, boundary wall [erected at colonial time]and Ram Chabutara [ to which Nirmohi Akhara claimed ownership] situated in the premises in dispute in spite of the interim orders passed by Supreme Court and this court [ Allahabad High Court] and the makeshift structure/temple was constructed at the place which was under the central dome and the idol was replaced there’. There was no mention of the Sangh Leadership’s presence and their role in the demolition except the calamities it invited.
“The demolition caused almost unprecedented communal disturbance and divide. In Independent India only the frenzy and madness which was unleashed immediately after the Independence and partition of the country could surpass the magnitude of the situation triggered by the demolition,” Khan observed.
He, however, raised the crucial and pertinent questions: “The demolition was by design, as asserted by some, or it was sudden, spontaneous and unplanned and was result of outburst of pant up feelings of the mob which had gathered there for Kar Seva (religious service) as asserted by others?”
But he chose to avoid the answer by observing that ‘this controversy is foreign to these suits and is not covered by any of the issues, hence nothing need be said in this judgment regarding this aspect [italics added]’
Despite this self-restraint Justice Khan, then half-convincingly referred to Marx’s axioms on history’s turns and post- demolition economic situation as well the impact of Mandal commission reports on Indian polity only to pin his hopes on the ‘remarkable resilience’ of people of India which disproved the ‘doomsday predictors’.
“The demolition did not prove Indian equivalent of storming of the Bastille and it remained a turning point in Indian history when history refused to turn”, he observed referring to Swapan Dasgupta, a commentator close to the Sangh Parivar. Like all secular-liberal nationlist Indians, he tried to reassure himself by invoking those lines of Iqbal’s Sare Jahanse– majhab nehi sikhata apas mein bair rakhna—which ‘we could again sing with fresh charm’.
The ‘epilogue’ of Justice Khan’s judgment is most telling. It reflects his consciousness about the ‘momentous task’ that involves ‘such sensitive and delicate matter’ as well as his role as an enlightened member of the minority community. Making clear that his judgment is less concerned with facticity of claims and counter claims and more with the spirit of religious tolerance and coexistence, Khan argued that he didn’t delve ‘too deep in history and the archeology’ as he was not sure whether he would found a ‘treasure of truth or monster of confusion confounded.
Having been aware that the judgment will be accused of caring more for myth/faith-based claims than history, he first said ‘he didn’t want to be caught in the crossfire of historians’ since he had ‘no pretence of knowledge of history’. Further, he quoted SC order in Karnataka Board of Wakf Vs GOI 2004(10) SCC 779 which maintained: “As far as a title suit of civil nature is concerned, there is no room for historical facts and claims. Reliance on borderline historical facts will lead to erroneous conclusions’.
As if he was aware that ‘this judgment is not finally deciding the matter and as the most crucial stage is to come after it’, he ended with an appeal to both the ‘warring factions’. But his appeal to the Hindus is cryptic one-liner: “the one quality which epitomized the character of Ram is tyag (sacrifice)’. His more elaborate appeal to Indian Muslims, as an enlightened member of the community rather than an unaffected, detached presiding officer of a court of law, is a frank and anguished reality check on the problems and challenges which the largest minority community in the country is facing. He referred to the ‘unique position’ of Indian Muslims as ‘they have been rulers here, they have been ruled and now they are sharers in power (of course junior partners)’ and tried to reassure them that they are not negligible minority’ before urging them to ‘start with their role in the resolution of the conflict at hand’.
Reminding of Prophet Mohammed’s treaty with a rival group at Hudayliyah which was initially considered an ‘abject surrender’ but later hailed by Quran as a ‘clear victory’, he tried to convince the Muslim claimants to the entire disputed site in accommodating the Hindu beliefs. Here again he referred to 1992 demolition to admire ‘our resilience.’ But also cautioned against any repeat of such crime without mentioning Sangh’s claims to Kashi/Mathura etc. “We must realize that such things do not happen in quick succession’. Another fall and we may not be able to rise again, at least quickly. Today the pace of world is faster than it was in 1992. We may be crushed”. Here ‘we’ clearly stands for Indian identity irrespective of religious affiliation as Khan quoted Iqbal, ‘ na samjhoge to mit jayoge aye Hindostawale’.
The judgment’s homogenization of Hindus and Muslims of India may be disturbing; the question remains whether the same discourse on religious tolerance, co-existence and pluralistic nationalism is found in other two judgments also? Let us explore them later.